The main legal point established in the judgment is that the bar under Section 92 of the Indian Evidence Act, 1872, does not apply in a suit between a party to the document and a stranger, allowing the defendant to lead oral evidence to prove the actual consideration.

JUDGMENT :

1. The parties are referred to as per their original status before the Trial Court. The appellants in Second Appeal No.1767 of 2005 are the original plaintiffs and the appellant in Second Appeal No.142 of 2006 is the original defendant no.2. The parties would be referred as plaintiffs, defendant no.2 and defendant no.1.

2. Heard Mr. S. P. Brahme, learned counsel for the plaintiffs and Ms. Madhaveshwari S. Mhase, learned counsel for defendant no.2.

3. The brief facts leading to the filing of the present second appeals can be summarized as under:-

[a] Defendant No.1 - Jaysing sold the suit land admeasuring 40 Are in favour of defendant no.2 by sale deed dated 08.09.1997 and the sale deed records the transaction for a consideration of Rs.32,000/-. The plaintiffs are sons and wife of defendant no.1 Jaysing. The suit is filed by wife and sons of Jaysing for declaration that the above sale deed executed by defendant no.1 in favour of defendant no.2 is void and not binding on the plaintiffs as the sale is not for legal necessity of the family. They also prayed for partition and separate possession of their share.

[b] Defendant no.1 did not appear and contest the suit. The suit was contested by defendant no.2 (alienee). The trial Court after examination of the evidence on record held that the sale transaction was not for legal necessity of the joint family and thus the sale was held not binding on the plaintiffs. The trial Court granted declaration that the above sale deed was not binding on the plaintiffs and the plaintiffs are entitled to partition and separate possession of the 4/5th share of the suit land.

[c] Aggrieved thereto the defendant no.2 filed appeal before the appellate court. The appellate Court concluded that the sale was for legal necessity and as such held that the sale deed was binding on the plaintiffs. However the appellate court held that the sale was void under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as Fragmentation Act of 1947). Having held so it has set aside the trial Courts judgment but has not granted possession of the suit land to the plaintiffs.

[d] Aggrieved thereby the Plaintiffs and defendant no.2 have both preferred the second appeals before this court.

4. It is the contention of the plaintiffs that the courts below have allowed defendant no.2 to plead and lead evidence as to the actual consideration paid for the sale transaction as Rs.1,15,000/- as against Rs.32,000/- mentioned in the sale deed and such pleading and evidence is barred by Section 92 of the Indian Evidence Act.

5. It is further the case of the plaintiffs that the defendant no.2 in the written statement has not given any details / particulars of the legal necessity and correspondingly there can be no evidence lead for the legal necessity in absence of proper pleadings in support of the same.

6. The learned counsel for the plaintiffs also submits that the sale deed does not mention that the sale is for legal necessity of the joint family and no corroboration can be found in the sale deed for legal necessity.

Per contra, defendant no.2 has challenged the finding of the appellate Court that the sale transaction is in violation of the Fragmentation Act of 1947. The defendant no.2 also contends that the appellate Court’s Judgment is not perverse as regards the findings of legal necessity.

7. By order dated 25.06.2007, the Second Appeals were admitted on the following two questions of law:-

“(i) Whether in the facts and circumstances of the present case, the consideration being Rs.1.15 lacs, which is contradict by or which is deviation of the terms of the sale deed and hence, it was violative of provisions of Section 91 of the Evidence Act and that the issue of legal necessity was thereby wrongly decided and finding in this behalf is otherwise perverse having regard to the nature of evidence adduced by the parties ?

(ii) Whether in the facts and circumstances of